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Recent Posts
- W.D.Ark.: Parole search waiver moots lack of PC argument
- AR: RS shown for boating while intoxicated stop
- W.D.Mo.: Wrong address in SW wasn’t fatal where right house was searched
- NY: Failure to show independent source for officer’s observation of def required reversal
- VA: Outline of a gun in def’s pocket was RS
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ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16) (discontinued 2018)
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by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book
www.johnwesleyhall.com -
© 2003-24,
online since Feb. 24, 2003 Approx. 425,000 visits (non-robot) since 2012 Approx. 45,000 posts since 2003 (26,730+ on WordPress as of 12/31/23) -
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Fourth Amendment cases,
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Congressional Research Service:
--Electronic Communications Privacy Act (2012)
--Overview of the Electronic Communications Privacy Act (2012)
--Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
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Section 1983 Blog -
"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me -
"Life is not a matter of holding good cards, but of playing a poor hand well."
–Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others) -
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)). -
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud -
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848) -
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984). -
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961). -
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987). -
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting). -
"The great end, for which men entered into society, was to secure their property."
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765) -
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting) -
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring). -
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987) -
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967) -
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting) -
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989) -
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards -
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp] -
“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
---Pepé Le Pew "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Author Archives: Hall
LA4: Merely having a concealed firearm isn’t RS for a frisk
“The State asserts that the evidence should not be suppressed because the NOPD was entitled to conduct a La. C.Cr.P. art. 215.1, ‘Terry stop’ on Mr. Green, which would have revealed the firearm. See Terry v. Ohio, …. However, the … Continue reading
OR: Merely driving off the road wasn’t RS, but adding the driver’s demeanor at the time was
“A traffic stop is a ‘seizure’ that requires a constitutional justification. … An officer’s investigative activity during a traffic stop is subject to both durational and subject-matter limitations. … Here, there are two ‘specific and articulable facts’ that support reasonable … Continue reading
CA6: Asking def before a patdown during arrest what he had on him wasn’t barred by Miranda
Asking defendant before a patdown during arrest what he had on him wasn’t barred by Miranda. United States v. Lester, 2024 U.S. App. LEXIS 9162 (6th Cir. Apr. 16, 2024). The evidence supports the trial court’s conclusion defendant consented to … Continue reading
NY Queens: PC shown for SW blood drawn at hospital after car wreck
Probable cause was shown for the search warrant for defendant’s blood drawn at a hospital after a car wreck. To the extent there is also a Franks challenge, it fails. People v. Moreno, 2024 NY Slip Op 24116, 2024 NYLJ … Continue reading
CA7: Hotel room vacated by tenant could be searched by hotel management
A hotel room search by the hotel manager after defendant’s tenancy expired was reasonable as a private search and under state law. He was also on parole, but the district court didn’t even mention that. United States v. Gay, 2024 … Continue reading
W.D.N.Y.: SW for devices used for video surveillance included cell phones because apps can be used to view cameras from cell phones
In a search warrant for devices capable of use in video surveillance, a cell phone qualified because apps on phones permitted home surveillance cameras (such as Ring doorbell cams) to be viewed on cell phones. United States v. Hampton, 2024 … Continue reading
CA3: PC for ptf’s arrest for punching a police horse
“Viewing the facts in the light most favorable to Coco as the non-moving party, we conclude there is a genuine dispute as to whether there was probable cause to arrest Coco for harassing a police horse under Del. Code tit. … Continue reading
D.N.M.: Three Franks challenges, one successful
Defendant succeeds in his Franks challenge. After a hearing, it was more likely than not that there was a false statement at least recklessly made, and it was material: “For these reasons, the Court finds that the false statement included … Continue reading
FL1: Violation of state knock-and-announce statute requires suppression; Hudson not followed
Violation of the state knock-and-announce statute required suppression. Officers entered with haste and didn’t give defendant the chance to surrender peaceably to the search. The statute is a century old, and it serves important privacy interests. The state’s claim that … Continue reading
N.D.Ala.: All parts of a SW are read in context, and that narrows it so it’s not overbroad
Defendant seizes on one sentence in the search warrant to contend that it was overbroad. Under Andresen, parts of warrants are read in context. In context, it was not overbroad. United States v. Canaday, 2024 U.S. Dist. LEXIS 64639 (N.D. … Continue reading
WA: No immediate bail for DV arrest violates neither 4A nor due process
A no bail arrest for domestic violence until the first appearance violates neither the Fourth Amendment nor due process. State v. Clare, 2024 Wash. App. LEXIS 462 (Mar. 12, 2024). CoA denied. Petitioner doesn’t show that his state Fourth Amendment … Continue reading
S.D.N.Y.: Overseas seizure of Russian oligarch’s megayacht not governed by 4A
This megayacht was seized overseas for Russia sanctions. (Eduard Yurievich Khudainatov is the owner, and he’s a Russian oligarch who is a Putin proxy (per Forbes)) The claim that the initial seizure may have violated the Fourth Amendment fails because … Continue reading
CA7: No IAC in failure to more aggressively pursue Franks challenge
Defense counsel acted reasonably in how he pursued defendant’s suppression motion founded on Franks in not arguing more stringently for bad faith. Here, defendant was charged in state court with child pornography. His motion to suppress the search was granted. … Continue reading
CA9: Compelled use of fingerprint to open a cell phone didn’t violate 5A
Police forcing defendant parolee to use his fingerprint to open his cell phone was not testimonial under the Fifth Amendment. It was “cognitive exertion” and akin to taking DNA or a blood draw. United States v. Payne, 2024 U.S. App. … Continue reading
CNS: Google to pay $62 million for tracking users without consent
Courthouse News Service: Google to pay $62 million for tracking users without consent by Natalie Hanson (“Google will pay $62 million to numerous nonprofits on behalf of people who say the company violated their constitutional and common law privacy rights … Continue reading
Lawfare: How Google’s Location History Program Could Upend Digital Surveillance Law
Lawfare: How Google’s Location History Program Could Upend Digital Surveillance Law (“Federal courts may eliminate Fourth Amendment protections for cell phone data based on dubious claims about Google’s Location History.”)
CA6 disagrees with CA7 on de minimis injuries under § 1983 force cases
“We end with two disclaimers. As for the first disclaimer, courts have suggested that § 1983 does not provide a cause of action for ‘trifling’ injuries—whether a plaintiff alleges a violation of the First Amendment, the Fourth Amendment, or any … Continue reading
MO: No duty of care owed by police to fleeing motorist
There was no duty owed to a fleeing motorist who killed himself and his passenger in flight. The police owed a duty to the rest of the locale to stop them. This was reasonable under Scott. Neil v. St. Louis … Continue reading
D.P.R.: Indictment for possession of switches to convert handguns to machine guns justified vehicle search when defendant was stopped
Defendant was indicted for possession of conversion devices to make handguns machine guns. That justified search of his car when he was stopped. United States v. Berríos-Aquino, 2024 U.S. Dist. LEXIS 66657 (D.P.R. Apr. 4, 2024). The DEA subpoena for … Continue reading